In the Interest of C.R., a Child v. the State of Texas

Opinions

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION

No. 04-24-00576-CV

IN THE INTEREST OF C.R., a Child

From the 2nd 25th Judicial District Court, Guadalupe County, Texas Trial Court No. 21-0032-CV-A Honorable Jessica Crawford, Judge Presiding

Opinion by: Irene Rios, Justice Concurring Opinion by: Lori Massey Brissette, Justice

Sitting: Irene Rios, Justice Lori Massey Brissette, Justice Adrian A. Spears II, Justice

Delivered and Filed: March 25, 2026

AFFIRMED

This appeal arises from a divorce proceeding between appellant James Rothrock and

appellee Shelby Rothrock. The parties had one child during the marriage. In the divorce suit, a

jury found by a preponderance of the evidence that the appointment of James as a possessory

conservator is not in the child’s best interest. The trial court adopted the jury’s findings and

concluded that granting James possession of or access to the child would endanger the physical or

emotional welfare of the child. Consequently, the trial court named Shelby the sole managing

conservator of the child and denied James possession of and access to the child. 04-24-00576-CV

On appeal, James argues the trial court’s order denying him rights, possession of, or access

to the child is essentially a termination order and such a finding must be supported by clear and

convincing evidence. In his first three issues, which we construe as a single issue, James contends

the jury charge erroneously instructed the jury that its findings could be based on a preponderance

of the evidence. We conclude James waived appellate review of this issue when he failed to object

to the jury charge at trial.

In his last issue, James argues the trial court impermissibly permitted the jury to answer

questions on a specific term or condition of possession of or access to the child in violation of

section 105.002(c)(2)(B) of the Texas Family Code. We hold the trial court properly submitted

the conservatorship question to the jury and the trial court denied James possession and access

based on the jury’s refusal to name him a conservator of the child. Stated differently, the trial

court properly concluded James was not entitled to possession of or access to the child because he

was neither a managing nor possessory conservator of the child. To the extent, James complains

about the wording in the jury charge, we conclude he has waived review of this issue as well. We

affirm the trial court’s final divorce decree.

BACKGROUND

James and Shelby were married on June 7, 2014. They had one child, C.R., during the

marriage. On January 5, 2021, Shelby filed a petition for divorce. In her petition, Shelby alleged

James had engaged in a history or pattern of family violence, child abuse, and child neglect. Shelby

requested she be appointed sole managing conservator and requested the court deny James

possession of and access to the child or, in the alternative, that possession be supervised.

The parties successfully mediated the division of marital assets, leaving only issues

regarding care, custody, and control of the child. Based on James’s request, the conservatorship

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issue was tried to a jury. The jury charge conference was conducted off the record; however, the

trial court came back on the record to ask the parties if they had any objections to the jury charge.

Both parties stated they had no objections to the jury charge. The jury charge instructed the jury

to answer questions based on a preponderance of the evidence and submitted five questions to the

jury. Only the first two jury questions are relevant to this appeal.

The first question asked whether the parties should be named joint managing conservators

or whether only one parent should be named sole managing conservator. The jury answered

Shelby should be named the sole managing conservator of the child. The second question asked

whether the non-managing conservator parent should be named a possessory conservator. The

jury answered “No.” Thus, the jury found by a preponderance of the evidence that James should

not be named a managing or possessory conservator of the child.

After the jury was dismissed, the trial court entered a final divorce decree. The trial court

adopted the jury’s findings that naming James as possessory conservator was not in the best interest

of the child and that his possession of or access to the child would endanger the physical or

emotional welfare of the child. The trial court named Shelby as the sole managing conservator

and ordered that James would not be named a conservator of the child. In the possession and

access section of the final divorce decree, the trial court found that awarding James possession of

or access to the child would endanger the child’s physical or emotional welfare and is not in the

best interest of the child. Critically, the trial court ordered that James shall not have any possession

of or access to the child based on the jury’s verdict that James is not a conservator of the child.

James appeals.

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JURY CHARGE ERROR: PRESERVATION

James argued his first three issues together and stated they are related and arise from the

same issues of evidentiary standards and the implications of due process. “[T]he quantum of proof

required to support a termination decision differs from the level necessary to support a

conservatorship appointment.” In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007). “Termination

decisions must be supported by clear and convincing evidence.” Id. “Due process compels this

heightened standard because terminating the parent-child relationship imposes permanent,

irrevocable consequences.” Id. On the other hand, a finding that appointment of a parent as a

possessory conservator is not in the best interest of the child and that parental possession or access

would endanger the physical or emotional welfare of the child is governed by a preponderance-of-

the-evidence standard. See TEX. FAM. CODE ANN. §§ 105.005, 153.191; see also J.A.J.,

243 S.W.3d at 616 (stating the burden of proof to support a conservatorship finding is by a

preponderance of the evidence).

James argues the trial court’s order denying him conservatorship, possession, and access

is tantamount to a parental termination and could only be supported by clear and convincing

evidence. Because the trial court instructed the jury to base its findings on a preponderance of the

evidence, and the trial court adopted the jury’s findings, James argues the trial court’s order

violates his right to due process. Importantly, James’s entire argument focuses on whether the trial

court instructed the jury to use the correct burden of proof. However, James does not argue the

evidence is insufficient to support the jury’s findings. Thus, the issue before us is one of jury

charge error.

“Under our procedural rules, the failure to raise a complaint at trial to a jury charge waives

review of that complaint on appeal.” In re B.L.D., 113 S.W.3d 340, 349 (Tex. 2003). “A party

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must make the trial court aware of the complaint, timely and plainly, and obtain a ruling.” Id.

Here, James concedes he did not object to the trial court’s jury instructions and therefore did not

preserve error. Instead, James argues we should review his unpreserved error under the

fundamental-error doctrine because due process requires a higher burden of proof to deny

possession of and access to his child. We disagree on two fronts.

First, we are skeptical of James’s argument that the trial court’s order here is tantamount

to termination of his parental rights. The supreme court has already rejected a parent’s argument

that denying a parent possession and access to their child is a de facto termination of parental

rights. See J.A.J., 243 S.W.3d at 617. The supreme court reasoned that even though the parent

may be denied conservatorship, and thereby possession of or access to the child, the trial court

nevertheless “retains jurisdiction to modify a conservatorship order if it is in the child’s best

interest, and the parent’s or child’s circumstances have materially and substantially changed since

the order was rendered.” Id. (citing TEX. FAM. CODE ANN. §§ 156.001, 156.101). In contrast, an

order that actually terminates a parent’s parental rights to his or her child “is traumatic, permanent,

and irrevocable” constituting the “‘death penalty’ of civil cases.” In re D.T., 625 S.W.3d 62, 69

(Tex. 2021) (noting the difference between an order that infringes on a parent’s right to care and

make decisions for the child and an order that permanently and irrevocably terminates all rights to

the child forever). Here, James’s rights to his child, although severely infringed, are not

permanently and irrevocably severed. Thus, this case cannot be equated to a termination case.

To support his contention that the trial court should have instructed a higher burden of

proof, James also points us to the supreme court’s recent decision in Stary v. Etheridge,

712 S.W.3d 584 (Tex. 2025). In Stary, the trial court signed a permanent protective order

prohibiting all contact between a parent and her children. Stary v. Etheridge, 712 S.W.3d 584, 588

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(Tex. 2025). The parent asserted on appeal that the protective order was tantamount to a

termination order and argued that the trial court erred by not employing a clear-and-convincing

burden of proof to support its decision. Id. The supreme court agreed holding that “trial court[’s]

rendering a protective order exceeding two years against a parent must (1) make the requisite

findings for an order to exceed two years under a clear and convincing standard and (2) consider

the best interest of the child.” Id. at 595–96. However, there are several distinguishing

consequences of the protective order in Stary that are not present in this case: (1) the protective

order was permanent for the duration of the parent’s life, even after the children reached majority;

(2) the protective order prevented all contact and imposed criminal penalties even if the children

wanted to contact the parent; (3) the order could only be reviewed twice, solidifying its

permanency; and (4) the supreme court put much emphasis on the fact that the protective order

would last greater than two years. Id. at 590–92. Given these considerations, the protective order

in Stary is more akin to a “traumatic, permanent, and irrevocable” deprivation of rights that

requires a heightened burden of proof. See D.T., 625 S.W.3d at 69. The same cannot be said in

this case given James’s ability to seek modification at any time so long as he can show a parent’s

or the child’s circumstances have materially and substantially changed since the order was

rendered.

Second—even if we were to accept James’s contention that the trial court’s order was

tantamount to termination, which we do not—supreme court precedent prohibits us from reviewing

unpreserved charge error and has rejected the fundamental-error doctrine exception in actual

termination proceedings. See B.L.D., 113 S.W.3d at 355 (“Under these circumstances, we hold

that a court of appeals must not retreat from our error-preservation standards to review unpreserved

charge error in parental rights termination cases.”).

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As mentioned above, our procedural rules provide that any complaint to a jury charge is

waived unless the complaining party made the trial court aware of the complaint through a timely

objection and obtained a ruling. Id. at 349, 354 (“As a general rule, due process does not mandate

that appellate courts review unpreserved complaints of charge error in parental rights termination

cases.”) “A limited exception to our procedural preservation rules is the fundamental-error

doctrine.” Id. at 350. “In light of the [the supreme court’s] strong policy considerations favoring

preservation, [the supreme court has] called fundamental error ‘a discredited doctrine.’” Id.

(quoting Cox v. Johnson, 638 S.W.2d 867, 868 (Tex. 1982)). In B.L.D., the supreme court noted

that it has only applied the fundamental-error doctrine in two situations to review unpreserved

error. B.L.D., 113 S.W.3d at 350.

First, the supreme court reviewed unpreserved error under the fundamental-error doctrine

“when the record shows on its face that the court lacked jurisdiction.” Id. This is self-evident

because the reviewing court must determine it has jurisdiction before it can rule on a case.

Second, the supreme court has “applied the fundamental-error doctrine to review certain

types of error in juvenile delinquency cases” because they are “quasi-criminal” cases, and it would

be “unwise and problematic to apply one preservation rule in adult, criminal proceedings and

another, stricter rule in juvenile cases.” Id. at 350–51. “However, this rationale does not support

applying the criminal fundamental-error doctrine to parental rights termination cases.” Id. at 351.

Courts “consider juvenile delinquency cases to be ‘quasi-criminal’ because[,] under the [Texas]

Family Code, the Texas Rules of Evidence applicable to criminal cases and Chapter 38 of the Code

of Criminal Procedure govern juvenile delinquency proceedings.” Id. “In contrast, our Rules of

Evidence applicable to civil cases and our Rules of Civil Procedure govern termination

proceedings.” Id. “Accordingly, because termination cases do not apply criminal procedural or

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evidentiary rules (that are only applicable to criminal cases), they do not necessarily incorporate

the concomitant criminal fundamental-error doctrine.” Id.

The supreme court concisely concluded:

In sum, we have not previously extended the fundamental-error doctrine to this area of the law, and we are not persuaded to do so here. We are aware of no precedent in either our criminal or civil jurisprudence that informs the court of appeals’ conclusion that “core” jury charge issues in termination cases should be reviewed even when not preserved. Further, we cannot see any reasonable, practical, and consistent way of reviewing unpreserved complaints of charge error in termination cases that satisfies our narrow fundamental-error doctrine. We conclude that the fundamental-error doctrine does not permit appellate review of the complaint of unpreserved charge error in this case.

Id.

Accordingly, we hold James did not preserve his appellate complaint when he failed to

object to the jury charge at trial. Following supreme court precedent, we decline to extend the

fundamental-error doctrine to review unpreserved, alleged jury charge error in this case.

James’s first three issues are overruled.

QUESTIONS REGARDING A SPECIFIC TERM OR CONDITION OF POSSESSION AND ACCESS

In his last issue, James argues the trial court impermissibly submitted a question to the jury

on issues of a specific term or condition of possession of or access to the child. However, the

record does not support James’s contention, and he has waived review of this issue because he

failed to object to the jury charge.

The jury question James complains about simply asked if James should be named a

possessory conservator. The family code permits the trial court to submit a question to the jury

regarding the appointment of a possessory conservator. See TEX. FAM. CODE ANN.

§ 105.002(c)(1)(C) (“In a jury trial . . . a party is entitled to a verdict by the jury and the court may

not contravene a jury verdict on the issues of . . . the appointment of a possessory conservator.”).

James complains that within the jury question, the jury was instructed to answer “‘Yes’ unless you

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find from a preponderance of the evidence that appointment of [the non-managing conservator

parent] is not in the best interest of the child and that possession or access by that parent would

endanger the physical or emotional welfare of the child.”

First, to the extent James complains about the alleged additional instruction in the

conservatorship question, we note that James failed to preserve error on this issue as well and has

waived his appellate complaint. B.L.D., 113 S.W.3d at 349 (“Under our procedural rules, the

failure to raise a complaint at trial to a jury charge waives review of that complaint on appeal.”).

Second, the jury question tracks the statutory language in section 153.191 of the family

code, which provides that a parent who is not appointed a managing conservator must be appointed

a possessory conservator unless there is a finding that the appointment is not in the child’s best

interest and that parental possession or access would endanger the child’s physical or emotional

welfare. See TEX. FAM. CODE ANN. § 153.191. Further, to the extent James argues the jury was

not permitted to answer the possession or access portion of this question, we note that in the

possession and access section of the final divorce decree, the trial court’s only reference to the

jury’s verdict is the jury’s finding that James is not to be named a conservator of the child, which

was a proper question for the jury. 1 Based on the jury’s conservatorship finding, the trial court

concluded James was not entitled to any possession of or access to the child. Thus, the record

negates James’s contention that the jury decided an issue on a specific term or condition of

possession of or access to the child.

James’s fourth issue is overruled

1 The final divorce decree states:

The Court FINDS that awarding [James] possession of and/or access to the child would endanger the child’s physical and/or emotional welfare, and are not [] in the best interest of the child. The Court FURTHER FINDS that based on the Jury Verdict that [James] is not a Conservator of the child, [] IT IS ORDERED that [James] shall not have any possession of and/or [access] to the child, C.R.

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CONCLUSION

We affirm the trial court’s final divorce decree.

Irene Rios, Justice

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